Supreme Court of India· 10 January 2025

Under Section 125(4) of the Code of Criminal Procedure, 1973, what is the difference between a wife's 'refusal' and her 'failure' to live with her husband?

Rina Kumari @ Rina Devi @ Reena v. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and another

2025 INSC 55
Coram: Sanjiv Khanna; Sanjay Kumar

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Answer

The expression used in Section 125(4) is 'refusal' and not 'failure'. Failure means not doing something that one is expected to do, whereas refusal means saying or showing that one would not do or accept something which is offered. Only where the husband says he is willing to do something for the wife and she shows she does not accept it is there a refusal. The mere failure of the wife to live with her husband is not sufficient to disentitle her to maintenance, Section 125 having to be given a liberal construction to fulfil the intention of the legislature.

Headnote

Code of Criminal Procedure, 1973 — s.125 — s.125(4) — Hindu Marriage Act, 1955 — s.9 — Maintenance of wife — Decree for restitution of conjugal rights — Refusal to live with husband — Code of Criminal Procedure, 1973 — s.125(4) — Restitution decree not by itself a disqualification — Held: The mere passing of a decree for restitution of conjugal rights, and non-compliance with it by the wife, is not by itself sufficient to attract the disqualification under Section 125(4). Whether she still had valid and sufficient reason to refuse to live with her husband depends on the facts of each case. (¶29) Code of Criminal Procedure, 1973 — s.125(4) — 'Refusal' distinguished from 'failure' — Held further: Section 125 must be given a liberal construction to fulfil the intention of the legislature. The crucial word chosen in the provision is 'refusal', and the mere failure of a wife to live with her husband does not disentitle her to maintenance. (¶27) Code of Criminal Procedure, 1973 — s.125 — Maintenance proceedings essentially civil — Civil Court findings not binding — Held further: Maintenance proceedings under Section 125 are essentially civil in nature, and the two proceedings are altogether independent. Findings of the Civil Court in the restitution suit are therefore not binding on the Court seized of the maintenance petition. (¶30, 33) Code of Criminal Procedure, 1973 — s.125(4) — Husband's conduct — Sufficient reason to stay away — Held further: Where the husband ignored his wife after her miscarriage, denied her the use of the toilet and proper cooking facilities, and having secured the restitution decree neither sought its execution nor a decree of divorce, she had sufficient reason to stay away. Appeal allowed and the maintenance order restored. (¶37, 38)

In the Court's own words

Paragraph 19In Kavungal Kooppakkattu Zeenath vs. Mundakkattu SulfikerAli[^10], the Kerala High Court noted that the expression used in Section 125(4) Cr.P.C. is ‘refusal’ and not ‘failure’ to live with the husband and that there is evidently some difference between the two. It was held that ‘failure’ would mean not doing something that one is expected to do but ‘refusal’ would mean saying or showing that one would not do or accept something which is offered. In effect, if a husband says he is willing to do something for the wife but she states or shows that she does not want or accept that something which is offered to her, then only there is refusal.

Paragraph 27Now, turning to the decisions of this Court on the point, in Kirtikant D. Vadodaria vs. State of Gujarat and another[^18], it was held that Section 125 Cr.P.C. has to be given a liberal construction to fulfil and achieve the intention of the legislature and, therefore, the passing of a decree for restitution of conjugal rights against the wife would not, by itself, defeat her right to maintenance under Section 125(1) Cr.P.C. It was further observed that the mere ‘failure’ of the wife to live with her husband would not be sufficient to disentitle her from receiving maintenance from him, especially as the crucial word carefully chosen in the relevant provision is ‘refusal’.

Acts & Sections

s.125(4) Code of Criminal Procedure, 1973s.125 Code of Criminal Procedure, 1973s.9 Hindu Marriage Act, 1955s.13(1A)(ii) Hindu Marriage Act, 1955s.41 Indian Evidence Act, 1872s.42 Indian Evidence Act, 1872s.498A Indian Penal Code, 1860Order XXI Rule 32 Code of Civil Procedure, 1908

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Also decided in this judgment

Under the Code of Criminal Procedure, 1973, does a decree for restitution of conjugal rights obtained by the husband, coupled with the wife's non-compliance, by itself disentitle her to maintenance under Section 125?Are proceedings for maintenance under Section 125 of the Code of Criminal Procedure, 1973 criminal proceedings, such that a Civil Court's findings bind the Court hearing them?Under the Indian Evidence Act, 1872, is a previous judgment of a Civil Court conclusive proof of what it states in a later proceeding?What is the object of Section 125 of the Code of Criminal Procedure, 1973?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections